Citation Nr: 1210587
Decision Date: 03/22/12 Archive Date: 03/30/12
DOCKET NO. 09-04 390 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York, New York
THE ISSUES
1. Entitlement to an evaluation in excess of 10 percent for a right shoulder disorder from February 25, 2005 to October 29, 2009.
2. Entitlement to an evaluation in excess of 20 percent for a right shoulder disorder beginning October 30, 2009.
3. Entitlement to a compensable evaluation for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
K. Osegueda, Associate Counsel
INTRODUCTION
The Veteran served on active duty from February 1968 to December 1975
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York.
During the pendency of the appeal, in a January 2010 supplemental statement of the case, the RO granted an increased rating for the Veteran's right shoulder disorder and assigned a 20 percent evaluation, effective October 30, 2009. The RO implemented the increased rating in January 2010. Because higher ratings are available for this disorder, and because a claimant is presumed to be seeking maximum available benefit for a given disability, the claim for an increased rating for the right shoulder disorder, as reflected on the title page, remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).
A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Board is unable to conclude that VA satisfied its duty to assist under 38 U.S.C. § 7104(a) (West 2002) (explaining that decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation).
In a December 2006 VA social work note, the Veteran reported that he applied for Social Security Administration (SSA) disability benefits in November 2006. It is not clear if the Veteran was awarded SSA disability benefits. However, a recent VA medical examination indicates that the Veteran has been unemployed for unknown reasons since 2005.
The RO/AMC must determine whether the Veteran applied for and is in receipt of SSA disability benefits. If so, the RO/AMC must determine whether any such award or application was based in whole or in part due to his right shoulder and bilateral hearing loss disabilities. If so, the RO/AMC must seek to obtain the associated SSA medical evidence and records of adjudication. See Golz v. Shinseki, 530 F.3d 1317 (Fed. Cir. 2010); see also Murincsak v. Derwinski, 2 Vet.App. 363 (1992) (where there is actual notice to VA that the appellant is receiving disability benefits from SSA, VA has the duty to acquire a copy of the decision granting SSA disability benefits and the supporting medical documentation relied upon).
Under 38 U.S.C.A § 5103A(c)(3), VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain. Lind v. Principi, 3 Vet.App. 493 (1992); Murinscak, 2 Vet.App. at 363. Although not dispositive as to an issue that must be resolved by VA, any relevant findings made by the SSA are evidence which must be considered. See White v. Principi, 243 F. 3d 1378 (Fed. Cir. 2001); Wensch v. Principi, 15 Vet.App. 362 (2001).
VA has the authority to schedule a compensation and pension examination when such is deemed to be necessary, and the Veteran has an obligation to report for that examination. Pursuant to 38 C.F.R. § 3.327(a) (2011), an examination will be requested whenever VA determines, as in this case, that there is a need to verify the current severity of a disability. See 38 C.F.R. § 3.159 (2011).
The Veteran's last VA spine examinations were conducted in December 2009, over two years ago. The most recent VA outpatient treatment records associated with the claims file are also dated in December 2009. Thus, the current status of his service-connected right shoulder and hearing loss disabilities are unknown, especially given that the Veteran has applied for Social Security Administration benefits. The RO/AMC shall afford the Veteran updated medical examinations. See 38 C.F.R.
§ 3.327(a) (2010); see also Caffrey v. Brown, 6 Vet.App. 377, 381 (1994) (holding that in a claim for increased rating, the Board erred in relying on a 23-month-old examination where the appellant submitted evidence to indicate there has been a material change in his disability since that examination).
VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet.App. 121, 124 (1991). An examination to determine the current severity of the Veteran's service-connected right shoulder and bilateral hearing loss disabilities must be conducted.
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC must:
a. Ascertain if the Veteran has received any VA, non-VA, or other medical treatment, pertinent to the claims on appeal, that is not evidenced by the current record - to specifically include, but not limited to, any VA outpatient records dated after December 2009 for any treatment of right shoulder and/or hearing loss disabilities. The Veteran must be provided with the necessary authorizations for the release of any private treatment records not currently on file. The RO/AMC must then obtain these records, as well as any other pertinent records, and associate them with the claims folder. If VA is unsuccessful in obtaining any medical records identified by the Veteran, it must inform him and provide him an opportunity to submit copies of the outstanding medical records.
b. Afford the Veteran an additional opportunity to submit any information that is not evidenced by the current record.
3. The RO/AMC must contact the SSA and obtain and associate with the claims file copies of the Veteran's records regarding SSA benefits, including any relevant SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based.
4. After the above development has been conducted, the RO/AMC will afford the Veteran a VA joints examination, to determine the degree of impairment resulting from his right shoulder disability.
a. The claims folder and a copy of this remand will be provided to the examiner for review in conjunction with the examination. The examiner must acknowledge receipt and review of these materials in any report generated by the examination.
b. The examiner will be advised:
The purpose of the examination is to ascertain the severity of the service-connected right shoulder disability. The question of the source or etiology of the disorder is only relevant to the extent that it may provide information as to the severity of the disorder.
The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion.
c. The examiner must take a complete history from the Veteran as to the nature and extent of his symptoms from approximately January 2005 (one year prior to the date of claim for an increased rating) forward.
d. The examiner must further report the complete range of motion for the right shoulder. In providing this objective information, he must indicate whether there is likely to be any additional decrease in range of motion attributable to functional loss, due to any of the following: pain on use, including during flare-ups; weakened movement; excess fatigability; incoordination; and repetitive use. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report.
e. The examiner must provide an opinion as to the effect of the Veteran's right shoulder disability on his occupational functioning and daily activities.
5. The RO/AMC will afford the Veteran a VA audiology examination, to determine the degree of impairment resulting from his bilateral hearing loss disability.
a. The claims folder and a copy of this remand will be provided to the examiner for review in conjunction with the examination. The examiner must acknowledge receipt and review of these materials in any report generated by the examination.
b. The examiner will be advised:
The purpose of the examination is to ascertain the severity of the service-connected hearing loss disability. The question of the source or etiology of the disorder is only relevant to the extent that it may provide information as to the severity of the disorder.
The mere statement of the examiner's expertise and/or a bare summary conclusion is not alone sufficient under the law to accomplish VA's legal obligation to assist the Veteran. By law, the Board must evaluate multiple factors in determining whether medical opinions are sufficient to evaluate a claim. These factors include but are not limited to whether the examiner was aware of all facts of record; reviewed the claims folder; conducted any necessary clinical testing or interview with the Veteran, and whether the examiner explained the factual and medical bases for any opinion.
c. The examiner must take a complete history from the Veteran as to the nature and extent of his symptoms from approximately January 2005 (one year prior to the date of claim for an increased rating) forward.
d. The examiner must provide an opinion as to any reason for the apparent discrepancy in audiological results for the right ear from the August 2007 VA examination and the December 2009 VA examination.
e. The examiner must provide an opinion as to the effect of the Veteran's bilateral hearing loss disability on his occupational functioning and daily activities.
6. The RO/AMC must then readjudicate the Veteran's increased rating claims. If the benefits sought on appeal remain denied, the Veteran must be provided a supplemental statement of the case (SSOC) that readjudicates his claims. The SSOC must set forth that the additional evidence has been considered and identify the relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet.App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).